O'Donnell v. Barbey

Soule, J. The defendant Barbey and his wife agreed orally with Cyrus Brooks to take care of him during his life, and bury him when dead, in consideration of having all his property after his death. It was understood that Brooks should perform the contract on his part, by making his will in favor of Barbey, as appears from the fact that he so made his will for the purpose of performing the contract, and from the further fact that Bar-bey made no request for performance in any other way. Mo other mode of performance so far as regards the land described in the plaintiff’s bill was possible, because Brooks had merely an equitable life estate in it, with a power of appointment over the fee by will. Any property of his own could be disposed of by Brooks by will, only subject to the payment of his debts. Whether he could, in consideration of his contract with Barbey, have made an appointment in his favor which would have been good against his own creditors, it is not necessary to consider. It is settled that a voluntary appointment is not good against creditors. Clapp v. Ingraham, 126 Mass. 200. In making the appointment, Brooks, the testator, saw fit to make the property as to which he executed the power, equitable assets in the hands of his executor. He gave it to Barbey, only after payment of his just debts and funeral charges. In effect, the will is an appointment first in favor of creditors, and secondly in favor of Barbey. Whether this is in strict accord with what Barbey expected when he made the oral agreement, it is not important to inquire. His interest in the property comes only by virtue of the appointment, and, as he claims under that appointment, he cannot claim adversely to it. The result is that the property described in the bill is assets for the payment of the debts of the testator, and must be appfied in the same way in which assets in the hands of an executor are ordinarily applied. The executor is entitled to receive the expenses of administration, because these are the first matter to which assets are applicable; and the funeral expenses [456] because these are specially provided for in the appointment, and are charges which, in case of a want of assets sufficient to pay debts, are preferred claims against the estate. Gen. Sts. c. 99, § 1. In the funeral expenses is to be included the cost of removing the body to Lincoln, as it was buried there. The plaintiff is entitled to the proceeds of the property described in her bill, after payment of the expenses above named, or so much thereof as is necessary to pay her judgment with interest, after deducting the amount of her debt to the estate, with interest from October 20, 1874, and to her costs. The trustee must sell the land, and out of the proceeds, after deducting the expenses of the sale, pay to the executor, the defendant Barbey, the amount of the expenses of administration and the funeral charges. He -will then pay the amount due to the plaintiff, including his costs to be taxed by the clerk, or such part thereof as the proceeds remaining are equal to; and if there remains any surplus in his hands after paying the plaintiff in full, he will pay the same to the defendant Barbey. The defendant Barbey is not entitled to receive any part of the proceeds of the land in payment of the expenses of the last sickness of the testator, nor in payment of his charges for taking care of the testator, nor in payment of any expenses incurred by him in repairing the buildings, because it does not appear that these services were rendered or expenses incurred in any expectation that they would be paid for otherwise than by means of the will which the testator made. Decree accordingly.